ML20039A174
| ML20039A174 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 12/11/1981 |
| From: | Lewis S NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8112160308 | |
| Download: ML20039A174 (23) | |
Text
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12/11/81 UNITED STATES OF AliERICA
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e NUCLEAR REGULATORY C0ti!1ISSION p
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~,1 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD O
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In the liatter of
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s PHILADELPHIA ELECTRIC C0t1PANY Docket Nos. 50-352 b_
e 50-353
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(Limerick Generating Station,
)
. Units 1 and 2)
)
NRC STAFF'S tiEt10RANDUM 0F LAW ON THE EFFECT OF OTHER PROCEEDINGS ON THE CONSIDERATION OF WATER SUPPLY ISSUES IN THIS PROCEEDING I.
INTRODUCTION Del-AWARE Uniinited, Inc., has offered proposed contentions on a wide range of " environmental" impccts of the construction and operation 4
of the proposed Point Pleasant Diversion Plan. This project would supply water from the Delaware River to Philadelphia Electric Company
(" Applicant") for its supplemental cooling water system ("SCHS") at the Limerick Generating Station and to the Neshaminy Water Resources Authority ("NWRA") to augment the drinking water supply in Bucks and Montgomery Counties, Pennsylvania.
The NRC Staff opposed the admission of Del-AWARE as an intervenor because it had failed to set forth how the interests of its members might Y
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be affected by the outcone of this proceeding.M This failure
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grew out-of the fact that the Delaware River Basin Connission ("DRBC"),
rather than the Nuclear Regulatory Commission, is the agency charged with responsibility for detemining the allocation of water in the Delaware River Basin. Petitioner had failed to show that the construction and operation of the proposed Point Pleasant. project, which has received DRBC's approval, could be affected by a determination by the NRC whether to issue operating licenses for Limerick.
Additionally, the Staff took the position that the aspects of the proceeding which Del-AWARE wished to raise were matters that had already been decided by the Commission in the construction permit ("CP") proceeding.E The significance of the decisions of DRBC on the Point Pleasant project for matters that may be raised in this proceeding has also received attention in the pleadings of the parties.
The Atonic Safety and Licensing Board directed Del-AWARE to address the argunents against relitigation of " water issues"3_/ and in response thereto Del-AWARE filed on flovember 24, 1981 its "lienorandun...Regarding Effects of Previous Proceedings on Present Consideration of Water
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"NRC Staff Response to Petitions to Intervene and Request for 1
Hearing..." (October 8,1981), at 18-21; "NRC Staff Answer to Amended Petition to Intervene of Del-AWARE Unlimited (flovember 16, 1981).
2]
See footnote 1.
-3/
" Memorandum and Order Setting Schedule for Subnission of Contentions and Other Preliminary Information" (October 14,1981),at4-5.
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Issues." The Staff herein files its memorandun of law on the water issues, $s further directed by the Board.O This memorandun also includes Staff's further response to the proposed contentions of Del-AWARE.E Following its analysis of the applicable law, the Staff has, therefore, provided further comments on the admissibility of the proposed contentions.
II.
DISCUSSION A.
Estoppel Based On Previous Commission Decision Under the Commission's regulations implementing the National Environmental Policy Act,E the environmental review at the operating license ("0L") stage is, as a general matter, limited to consideration of relevant information which has arisen since the authorization of a construction permit "CP").E This limitation on the matters which must be considered at the OL stage reflects the judicial (and administrative)
-4/
October 14, 1981 order, at 9, as subsequently adjusted. The Applicant filed its memorandum of law on December 7,1981 as part of its " Answer to Supplemental Petition of Coordinated Intervenors," at 48-94. Staff was granted an extension until December 11, 1981 for the filing of its Memorandum. See Letter (Hemorandun of Conference Call) from Staff counsel to the service list (December 7,1981).
,5)
As indicated in the "NRC Staff Answer to Supplemental Petition of Coordinated Intervenors" (December 7,1981), at 23, the Staff reserved the right to reevaluate the admissibility of the proposed contentions in light of the position taken in its memorandum.
y 42 U.S.C. 6 4321, el seq.
7f 10 C.F.R. 66 51.21, 51.23(e); Calvert Cliffs' Coordinating Committee, Inc. v. AEC, 499 F.2d 1109,1128 (D.C. Cir.1971); Union of Concerned Scientists v. AEC, 499 F.2d 1069,1079 (D.C. Cir.
1974).
policy against relitigation of matters already decided. This policy is expressed.in the doctrines of res judicata and collateral estoppel.
These doctrines have been applied by the Commission to bar reconsideration of matters at the OL stage which were considered at the CP stage for the same facility, absent a supported assertion of changed circumstances or the existence of some special public interest factor.E Under the doctrine of res judicata, a judgment on the merits in a prior suit bars a second suit involving the same parties or their privies based on the same cause of action. Under the doctrine of collateral estoppel, the second action is upon a different cause of action and the judgment in the prior suit precludes relitigation of issues actually litigated or otherwise disposed of and necessary to the outcone of the first action. Before the doctrine of collateral estoppel can be applied, the following four elements must be present:
1.
The issue sought to be precluded is the sane as that involved in the prior action.
2.
The issue was actually disposed of in the proceeding.
3.
The issue was determined by a valid and final judgment.
4.
The detemination of the issue was essential to the prior judgment.E
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Alabama Power Co. (Farley Nuclear Plant, Units 1 and 2), ALAB-182, 7 AEC 210, 216, remanded on other grounds CLI-74-12, 7 AEC 203 (1974).
y 1B, Moore, Federal Practice. 0.405[1] 2d ed. (1974).
See Farley, et al. (South ALAB-182, supra, Houston Lighting and Power Company, T19T9), aff'd Texas Project, Units 1 and 2), LBP-79-27, 10 NRC 563 ALAB-575, 11 NRC 14 (1980).
If Del-AllARE argues, as it has, that it should not be collaterally estopped.from litigating issues decided in other proceedings because it is not in privity with any party to those proceedings, the Board also directed it to address the implications of Parklane Hosiery Company v.
Shore, 439 U.S. 322 (1979). That decision held that " offensive" collateral estoppel, whereby a plaintiff seeks to estop a defendant from relitigating issues which the defendant has previously litigated and lost in an action with another party, could be applied where the plaintiff could not have easily joined in the other action and the estoppel wobid be unfair to the defendant.E Although Parklane involved offensive collateral estoppel, its theory reached more broadly. The Court noted the erosion of the requirement of " mutuality" for invoking collateral estoppelE (i.e., that neither party could use a prior judgment to estop the other unless toth parties were bound by the judgment). Additionally, the Court emphasized the broad discretion that should be granted to judges in detemining when to invoke collateral estoppel.E 10/ 439 U.S. at 331.
11/
Id., 439 U.S. at 327-28.
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Id., 439 U.S. at 331.
3
s Parklane has been cited by an atomic safety and itcensing board as a basis fo applying collateral estoppel against an intervenor in an OL.
proceeding who had not been a party to the CP proceeding for the saae facility and sought to raise issues which had been litigated in that proceeding.E The board reasoned that Commission licensing proceedings are " notorious" and that residents in the vicinity of the facility, including the intervenor, could be held to have had " actual notice" of-the CP proceeding.EI Additionally, the board noted that intervenors in Comnission. proceedings, while admitted on the basis of their own interest, "often attempt to litigate generally any concerns
-which might also bother other residents in the community" and, further, that it is the obligation of the Staff to represent the public interest in the proceedings.El On these bases, the board concluded that collateral estoppel could be properly applied against an -intervenor not a party to the CP proceeding unless its petition raised significant new material.E/
H/ Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-81-24, 14 NRC 175 (1981).
H/ 14 NRC at 199-200.
H/
14'NRC at 200.
16/ Id.
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a In-this ~ proceeding, collateral estoppel could apply to bar relitigai.1on of those water supply related matters which were decided by' the Licensing Board (as modified and affinned by the Appeal Board) in the CP proceedings. E The Board' had before it for consideration in that proceeding environnental-assessments of three watei supply alternatives, all of which included as an integral part the Point PleasantDiversion.E The decision of the'DRBC on the environmental impacts of the Point Pleasant. Diversion was appended to the FES and was reviewed and concurred in by the Staff in striking its cost-benefit balance.E-Additionally, the Staff evaluated in the FES the water transnission main from Perkionen Creek to the plant and offered supplemental testimony on the impacts associated with the main from Bradshaw Reservoir to Perkiomen Creek.E
-17/ LBP-74-44, 7 AEC 1098 (1974), affimed as modified, ALAB-262,1 NRC 163 (1975).
-18/ ALAB-262, 1 NRC 182. The three water supply alternatives were (1) the Tocks Island project, (2) a " river follower" mode of operation, i
and (3) a supplemental reservoir. The Board's authorization of the
{
L cps was on the basis of the river follower mode.
1 NRC at 200, j
202-205.
I 19/ ALAB-262, 1 NRC at 186.
E
.I.d.
1
.. Since the proposed contentions of Del-AWARE center on the inpacts at the Poin_t Pleasant intake, a subject which had already been addressed in a DRBC decision which was available at and considered in the CP proceeding, the Staff believes it is incumbent upon Del-AWARE to allege significant new infomation in order to litigate the environmental impacts associated with the Point Pleasant intake in this proceeding.
The same burden would also apply to impacts on the groundwater in the vicinity of Bradshaw Reservoir and on the Perkionen Creek which have allegedly not been considered by the NRC. b To date, Del-AWARE has failed to make a sufficient showing on these matters so as to warrant
.their relitigation in this proceeding.
Since Del-AWARE has also asserted that the ilRC may not rely upon the DRBC's analysis of environnental impacts of the Point Pleasant Diversion but must prepare its own independent analysis, E we now turn to a consideration of the role which DRBC's analyses and decisions may properly play in the Staff's FES for operation of Limerick.
21/ Although neither Del-AWARE nor any of its members was a party to the CP proceeding, other citizen groups did intervene, including two present petitioners, Limerick Ecology Action and Environmental Coalition on fluclear Power.
g flemorandum, 3-12.
1r
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Significance in this Proceeding of DRBC DecisionsE B.
In lhis section, the Staff analyzes its obligations under NEPA to assess independently the environmental impacts of the supplementary cooling water system for Limerick. That analysis entails consideration of the following natters: (1) the purpose of the environmental impact statement preparation requirement of NEPA, (2) the areas of DRBC responsibility, and (3) the permissibility of the Connission's use of DRBC's analyses and decisions to provide bases for sone of the I
conclusions it is required to make under NEPA.
The general obligation of the Cormiission under NEPA in the determination of whether to issue an operating license is to consider all of the environmental impacts of the operation of the facility and to weigh those impacts against the anticipated benefits of operation of the f acili ty.2_4/ NEPA has been described as essentially a " full disclosure" statute, for the benefit of both the Federal decisionnaker and the public.E
-23/ The Staff believes that a determination of whether estoppel night attach because of the decision on various issues by DRBC cannot be reached on the. basis of the pleadings presently before the Board.
Such a determination would require a thorough review of the DRBC record, a review which the parties have not yet had the opportunity to undertake. Additionally, Staff believes that a review of the Corps of Engineers' record at the time of its decision will be necessary to determine whether any estoppel may arise from that decision.
24/ See Sierra Club v. fiorton, 379 F.Supp.1254 (D. Colo.1974).
25/ Monroe County Conservation Council v. Volpe, 472 F.2d 693 (2nd Cir.
5 1972); Sierra Club v. Froehl ke, 359 F.Supp.1289 (S.D. Tex.1973).
The NRC's NEPA obligations extend in this proceeding to a considerition of the environmental impacts of the construction and operation of the supplemental cooling water system (SCWS) in support of Limerick's operation.
In this proceeding,_however, there is another
.i agency, the DRBC, which has conducted extensive arialyses of the Point Pleasant Diversion project, upon which Applicant's SCWS is based. DRBC represents a definite resource to aid the NRC in the discharge of its NEPA obligations, an advantage that is not available to the Staff in all of its licensing proceedings.
However, Del-AWARE asserts that DRBC is lacking in technical expertise and is not a disinterested regulator, but rather a promoter of the-useofwaterunderitscontrol.b Del-AWARE provides nothing nore than generalized statements in support of these assertions and the Staff's review of the Delaware River Basin ("DRB") CompactE and the DRBC's experience in carrying out the responsibilities placed on it under the Compact belie these assertions.
The DRB Compact was addressed by the Appeal Board in ALAB-262 as part of its analysis of the role of DRBC as a Federal agency.E The y Memorandum, at 5.
27/ Pub.L.87-328, 75 Stat. 688.
7 23 1 NRC at 187-89.
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Appeal Board found that the DRB Compact made the tinited States (through the Secgtary of Interior) a signatory party and estabitshed the DRBC as an " agency and instrumentality of the governments of the... signatory parties."2_9/ The other parties to the Compact are the States of Delaware, New Jersey, and New York, and the Commonwealth of Pennsylvania.
-The DRB Compact confers upon the DRBC authority over both the development of water storage facilities to augment the water supply in the Basin during periods in which the natural flow of fresh water is reduced, and the allocation of water to approved projects within the Basin.b DRBC also regulates the supply.and use of water in the Basin through a Comprehensive Plan which it has developed. That plan establishes water supply and water quality standards based upon DRBC's forecasts of-the future supply of and demand for Basin water. On the supply side, DRBC looks at the anticipated natural flow of water in the Basin as augmented by existing and proposed storage facilities. The projected demand stems from those consumers who have received a DRBC authorization to draw water or who have been guaranteed a specified nininum amount of water by court decree. E g / 1 NRC at 187.
3_0/ DRB Compact (Sections 2.7, 3.1 - 3.8, 4.1 - 4.5, 75 Stat. 692 - 96).
3_1] See Compact Secticn 3.2, 75 Stat. at 692.
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With respect to the proposed Point Pleasant Diversion, DRBC has given final approval of that project by inclusion in the Comprehensive
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Plan, of the Neshaminy Water Resources Plan (which included the Point
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Pleasant intake and pumping station and the combined transmission main to the Bradshaw Reservoir)S2/ and the proposal of Applicant for the Bradshaw Reservoir, pumping station, and the transmission main to the EastBranchPerkiomenCreek.E Those determinations of DRBC have been upheld on review by the District Court.E In regard to its responsibilities concerning discharges, DRBC
. carries out a number of programs related to Basin assessment, planning and nanagement. Of principal interest, in light of Del-AWARE's assertions of lack of expertise, are DRBC's responsibilities to (1) establish basic criteria for water quality and streanflow to ensure the protection and enhancement of sport and commercial fisheries, wildlife, and recreation and (2) prepare environmental impact statements and comment upon the EISs of other agencies with respect to projects within the Basin which could have an effect on its environmental quality.E 32/ Decision in Docket No. D-65-76 CP (February 18,1981).
33/ Decision in Docket No. D-79-52 CP (February 18,1981).
34/ Delaware Water Emergency Group v. Hansler, Civil Action No. 80-4372 (E.D. Pa. August 17,1981).
35/ A description of the DRBC's program activities was provided to the House Appropriations Subcommittee on Public Works and excerpts of that testimony are reprinted in the Environmental Reporter at Section 51:1301.
i,
Based upon this range of responsibilities under the Compact and of program ictivities to carry out those responsibilities, DRBC can be expected to have considerable expertise in the development of impact statements and appraisals. E This expertise has been recognized by CEQ by its express approval of a tiarch 1973 agreement which delegated responsibility to DRBC for the conduct of the NEPA review of the generalized supplemental reservoir that DRBC might require Applicant to construct in support of its operation of Limerick. E Del-AWARE disputes the detemination of the Appeal Board that DRBC is a Federal agency for purposes of compliance with NEPA.E In so
--36/ fiarch 23, 1973 letter from Mr. Alm (CEQ) to Mr. Wright (DRBC). The letter also provided that should DRBC require a supplemental reservoir, the EIS for it would be prepared by DRBC. The letter is an attachment to " Applicant's Answer to Supplemental Petition of Coordinated Intervenors" (December 7,1981).
3_7/ CEQ statistics indicate that DRBC filed with it between January 1, 1970 and December 31, 1978, 12 draft or final EISs. Orloff and Brooks, The National Environnental. Policy Act, Cases & Materials, The Bureau of National Affairs, Inc., (Wash., D.C. (1980)),
pp. 52-54, Table 2.
38/ ALAB-262, 1 NRC 187-89.
doing, Del-AWARE relies upon the statement of the District Court in DelawarhWater Emergency Group v. Hansler, supra, "that DRBC is a federal agency for purposes of NEPA is very doubtful."E Because, however, the parties to that proceeding all took the position that NEPA applies to DRBC and because DRBC's regulations in substance adopt all NEPA requirements, the court found that "the issue as to whether NEPA is applicable to DRBC need not be presently decided."E Further, as recognized by the District Court, DRBC has been consistently treated by the. courts as a Federal agency for NEPA purposes.b and, indeed, this court, while not specifically addressing the questions, appears to treat it as such, as well.
Staff believes that no serious dispute has been raised as to the correctness of the Appeal Board's conclusion that DRBC is a Federal agency for purposes of NEPA. Additionally, we believe that the responsibilities of DRBC and its record of accomplishment disprove any assertion that it is not technically qualified to prepare the principal EIS for consideration of the impacts of construction and operation of the Point Pleasant Diversion project. Del-AWARE has also generally asserted that DRBC cannot be deemed impartial because it is empowered to exact
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39/ Memorandum at 5-6, mistakenly attributing this statement to the Third Circuit. The cited passage appears at 17 of the slip opinion.
40/ Slip op., at 18.
0 4_1/ Borough of Morrisville v. Delaware River Basin Commission, 399 F.Supp. 469 (E.D. Pa.1975), aff'd, 532 F.2d 745 (3d Cir.1976);
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charges for water which -it permits to be provided from sources' under its control.- Del-AWARE does not explore, however, how DR8C would be biased for,or against a particular potential user where it could presumably collect the costs from whichever competing user it approved. 'Even if it were believed that DRBC has some financial stake in the approval of Applicant's participation in the. Point Pleasant Diversion Plan, it does not necessarily follow that this should disqualify DRBC from preparation of ~the EIS.32/ We do not believe that Del-AWARE has established either a bias or lack of competence so as to detract from the validity of any impact statement it may prepare.
We now turn to a consideration of the manner in which the DRBC's environmental impact statements and appraisals and its decisions based thereon can be used in this proceeding. The CEQ regulations approve and i
encourage the.use' of so-called " lead agencies" in the preparation of environmental impact statements involving activities of more than one Federal agency.33/ As noted above, as long ago as 1973 CEQ recognized DRBC as having the lead responsibility with respect to the assessment of the impacts of any supplemental reservoir that it may require in support 4
of Limerick operation. The Appeal Board upheld the Staff's use of DRBC's analysis and findings as to the impacts of construction and operation of 42/ Life of the Land v. Brinegar, 485 F.2d 460 (9th Cir.1973), cert.
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-denied. 415 U.S. 961 (1974).
43/ 40 C.F.R. 6 1501.6.
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. 4 the Point Pleasant intake and related structures in the striking of the Staff's. cost-benefit balance.b The Staff'had used those findings in its balancing pro ~ cess only after independently reviewing DRBC's impact statement and concurring in its conclusions. E Additionally, the Staff
- evaluated in the FES and offered supplemental testinony on those portions of the project which were related principally to the support of Limerick's operation.E The Staff will undertake a similar review of DRBC's impact appraisal prepared in connection with its approval of the Point Pleasant Diversion project before adoption of, or reliance upon, any of its findings for purposes of striking the cost-benefit balance for operation of Limerick.
The Staff's NEPA responsibilities will not, therefore, have been
" delegated" or in any manner improperly placed upon another agency. b Del-AWARE relies upon the Appeal Board's opinion in Phipps Bend $
4_4f ALAB-262, 1 NRC 185-86.
4_5/ Id. at 186.
$ Id.
9 Tennessee Valley Authority (Phipps Bend Nuclear Plant, Units 1 and 2), ALAB-506, 8 NRC 533 (1978).
48/
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which emphasized the obligation on both TVA (the Applicant and a Federal agency) and the NRC independently to determine whether NEPA has been satisfied.N Although there are differences between Phipps Bend and the present case in that TVA was not functioning as " lead agency" whereas DRBC is, the Staff believes that in its interaction with DRBC, as described above, Staff will fully comply with its NEFA responsibilities.
Staff concludes that there is nothing violative of NEPA in the way it intends to conduct its review of the present application.
III.
FURTHER CONSIDERATION OF DEL-AWARE'S PROPOSED CONTENTIONS A.
Contentions Alleging Inadequate Considerations of Environmental Impacts (Contentions V-11 (in part), V-13 V-15,V-16,V-16a,V-16b,V-16c)
In these proposed contentions Del-AWARE raises environmental impacts which it believes were not considered by the Commission (because of changes which occurred after CP issuance), nor by DRBC. Del-AWARE alleges that some of the impacts are related to developments which post-date the DRBC's 1981 approvals of (1) the Bradshaw Reservoir, pumping station, and transmission main, and (2) the Neshaminy Watershed Plan (including the Point Pleasant Intake and Pumping Station and the Combined Transmission Main) for inclusion in the Comprehensive Plan under Section 3.8 of the Compact. Del-AWARE alleges that other impacts relate to location of the intake or other matters as to which DRBC was given erroneous infonnation. Del-AWARE was not a party before DRBC and has not, therefore, sought any remedy through DRBC, but is actively raising 4y 8 NRC at 547.
its concerns before the Corps of Engineers (C0E).
In any event, the Staff wOl, pursuant to its obligations under NEPA, review all of the evaluations and detenninations of DRBC, COE', and other involved agencies to assure that the environmental impacts of all facilities that are required to support the operation of Limerick have been adequately considered.N Should the Staff conclude, based on those reviews, that the impacts have been adequately considered, it may simply factor the impacts determined by these other agencies into its cost-benefit balance.
While Staff does not oppose the admission of these contentions, it will then be for the Board to determine whether further evaluation is required.
B.
Contentions Asserting that the Commission Cannot Take Action Until Specified Permits are Received by Applicant (Contentions V-15 (in part), V-20 and V-21)
Del-AWARE also alleges that the Commission cannot take action until certain permits for intakes and discharges are received by the Applicant.
The permits required by the Applicant are set forth in Chapter 12 of the Environmental Report--Operating License. Whatever pennits are a statutory prerequisite to the Commission's issuance of operating licenses must, of course, be received prior to that action. Other permits may be prerequisites to Applicant's intake or discharge of water, but are not required for the Commission to take action. Staff has no objection te the admission of these contentions as legal issues respecting whether the pennits specified are prerequisites to Commission action.
50/ See letter from Robert L. Tedesco (NRC to Gerald M. Hansler (DRBC),
0 which is attached to Del-AWARE's memorandum.
(Ex. F).
C.
Contention V-19 Idcluded in this proposed contention is an assertion that Applicant has failed to compare the impacts of a supplemental reservoir on the Schuylkill with the present SCWS. While we have no objection to the admission of this aspect of the contention, it should be noted that the decision on whether to require a supplemental reservoir is for DRBC and any further need to evaluate a Schuylkill location should await DRBC's decision.
D.
Contentions Raising Indirect Effects of NWRA's Use of Water from Point Pleasant Diversion (Contentions V-11 (in part),V-12,V-17,andV-18)
Del-AWARE alleges in these contentions that because NWRA has undertaken some down-sizing of its projected water needs, the Point Pleasant Diversion Plan would not be continued but for Applicant's need for the water and that the impacts of the entire Plan should be deemed attributable to the operation of Limerick.
Even though NWRA nay have reduced its water need projections, Staff is not aware of any information that NWRA has terminated its participation in the project. That being the case, there remain certain impacts which are attributable solely to NWRA's activities and not to the Applicant's. Since the petitioner alleges that NWRA's increased water supply will be the cause of growth in Bucks and Montgomery Counties, such impacts should therefore, be treated as solely attributable to NWRA's activities.
Admittedly, Federal agencies have the responsibility to consider all reasonably foreseeable impacts of a proposal, even though they may be
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" secondary" or " indirect."Sl However, an impact statement need not address-indirect effects which are " remote" or " highly speculative."E At least some nf the impacts anticipated bi Del-AWARE (e.g., the growth which will be induced by higher costs for water supplied by NWRA) appear to be remote and speculative. Additionally, as long as NWRA remains a participant in the Point Pleasant Diversion Plan, its use of water from the project has " independent utility" and the impacts associated with that use are not required to be considered in the NEPA analysis' of the operation of Limerick.E In proposed Contention V-12, Del-AWARE also asserts that it is the Applicant's burden under NEPA to demonstrate that the supplemental cooling water system will "not cause a substantial, irreparable and unjustifiable ham to the econony and environment of the Delaware River Valley." As noted above, however, the purpose of NEPA is to require full disclosure of all environmental factors so that they may be included in a cost-benefit balancing of the proposed activity, not to limit acceptable proposals to only those with a particular quantum of impact.
5_1] Hanly v. Mitchell, 460 F.2d 640, 646 (2nd Cir.1972), cert denied, 409 U.S. 990; City of Davis v. Coleman, 521 F.2d 661, 676-77 (9th Cir. 1975).
W Trout Unlimited v. Morton, 509 F.2d 276 (9th Cir.1974).
53/ Daly v. Volpe, 376 F.Supp. 987, 993 (W.D. Wash.,1974) aff'd 514 F.2d 1106 (9th Cir.1975). See also Sierra Club v. Froehlke, 392 F.Su p.130,135 (C.D. Mo.193), aff'd 543 F.2d 1289 (8th Cir.
197.6.
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Staff concludes, therefore, that these contentions should not be admitte2.
IV. CONCLUSION The Staff concludes that Del-AWARE can be estopped from raising those matters which were litigated at the CP stage, unless it demonstrates that there is significant new information with regard to the matters sought to be relitigated. As to the role of DRBC's analyses and findings, the Staff concludes that NEPA requires it independently to review those analyses and findings before adopting, or otherwise relying upon, them in the striking of its cost-benefit balance. The Staff's position on the admissibility of Del-AWARE's proposed contentions is set forth in its " Answer to Supplemental Petition of Coordinated Intervenors," at 23-26, as supplemented by the comments above.
Respectfully submitted, Stephen 1. Lewis Counsel for NRC Staff Dated at Bethesda, haryland this lith day of December,1981 i
1
l UillTED STATES OF AMERICA ilUCLEAR REGULATORY COMMISSION BEFORE THE AT014IC-SAFETY A!!D LICENSING BOARD In theliitter of PilILADELPHIA ELECTRIC COMPANY
)
Docket Nos. 50-352
)
50-353 (Liiaerick Generating Station,
)
Units 1 and 2)
)
CERTIFICATE UF SERVICE I hereby certify that copies of "NRC STAFF'S MEMORANDUM 0F LAW ON THE EFFECT OF OTHER PROCEEDINGS ON THE CONSIDERATION OF WATER SUPPLY ISSUEu :N THIS PROCEEDING" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, as indicated by an asterisk thrt ugh densit in the Nuclear Regulatory Commission's internal mail system, or as indicated by double asterisk by express delivery s2rvice, this lith day of December,1981:
Lawrence Brenner, Esq., Chairman **
Mr. Edward G. Bauer, Jr.
Adiainistrative Judge Vice President & General Counsel U.S. lluclear Regulatory Comraission Philadelphia Electric Company Washington, DC 20555 2301 Market Street Philadelphia, PA 19101 Dr. Richard F. Cole
- Adiainistrative Judge Troy B. Conner, Jr., Esq.
U.S. Iluclear Regulatory Comraission Mark J. Wetterhahn, Esq.
Washington, DC 20555 Conner and Wetterhahn 1747 Pennsylvania Avenue, N.W.
Dr. Peter A. Morris
- Washington, DC 20006 Administrative Judge U.S. Nuclear Regulatory Commission Mr. Charles Bruce Taylor Washington, DC 20555 24 West Tenth Avenue Collegeville, PA 19426 Mr. Frank R. Romano Air and Water Pollution Patrol Mr. Marvin I. Lewis 61 Forest Avenue 6504 Bradford Terrace Arabler, PA 19002 Philadelphia, PA 19149 Atomic Safety and Licensing Atomic Safety and Licensing Board Panel
- Appeal Panel (5)*
U.S. liuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20554 Docketing and Service Section*
James H. fleill, Esq.
Uffice of the Secretary Associate Counsel for Del-Aware U.S. Nuclear Regulatory Commission 3ox 511 Washington, DC 20555 Dublin, PA 18917
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Environmental Coalition on fluclear Walter W. Cohen i
Power Consumer Advocate Dr. Judith H. Johnsrud, Co-Director Office of Attorney General 433 Orlanao Avenue 1425 Strawberry Square State College, PA 16801 Harrisburg, PA 17120 Robert W. Adler Assistant Counsel Commonwealth of Pennsylvania, DER Thomas Gerusky, Director 505 Executive House, Bureau of Radiation Protection P.O. Box 2357 Dept. of Environmental Resources Harrisburg, PA 17120 5th Floor, Fulton Bank Building Third and Locust Streets Randall Brubaker Harrisburg, PA 17120 Assistant Counsel Commonwealth of Pennsylvania, DER Director Room 1200, 1315 Walnut St.
Pennsylvania Energency Management Philadelphia, PA D107 Agency Bosement, Transportation & Safety Joseph H. White Ill Building 11 South !!erion Avenue Harrisburg, PA 17120 Bryn Mawr, PA 19010 John Shniper Steven P. Hershey, Esq.
Meeting House Law Oldg. & Gallery Consumers' Education Mennonite Church Rd.,
and Protective Association Schuylkill Rd. (Rte. 724)
Sylvania House Spring City, PA 19475 Juniper and Locust Streets Philadelphia, PA 19107 Robert L. Anthony Friends of the Earth of the Alan J. Nogee Delaware U.11ey The Keystone Alliance 103 Vernon Lane, Box 186 3700 Chestnut Street Moylan, PA 19065 Philadelphia, PA 19104 Judith A. Dorsey, Esq.
- Robert J. Sugarman Limerick Ecology Action Del-Aware Unlimited, Inc.
1315 Walnut Street, Suite 1632 Berle, Butzel, Kass & Case Philadelphia, PA 19107 2115 Bainbridge Street Philadelphia, PA 19146 Donald S. Cronstein, Esq.
The liational Lawyers Guild William A' Lochstet Third Floor 119 E. Aaron Drive 1425 Walnut Street State College, PA 16801 Philadelphia, PA 19102 Stepherf H. Lewis Counsel for NRC Staff l
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